Citation NR: 9729840
Decision Date: 08/29/97 Archive Date: 09/04/97
DOCKET NO. 95-14 635 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUE
Entitlement to a total disability rating prior to March 1,
1966.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
ATTORNEY FOR THE BOARD
M. Reynolds, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1945 to May
1946, and from September 1946 to April 1955.
This appeal arises from a October 1994 rating decision from
the San Juan, Puerto Rico Regional Office, in which a total
disability rating was assigned as of March 1, 1966.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to total disability
benefits for the time period between June 1, 1963 and March
1, 1966.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the evidence favors the
granting of total disability benefits for the period between
June 1, 1963 and March 1, 1966.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran’s appeal has been obtained.
2. The RO reduced the 100 percent evaluation in effect for
schizophrenic reaction, paranoid type, to a 70 percent
rating, by a decision dated in March 1963. This action was
contrary to pertinent laws and regulations and was void ab
initio.
CONCLUSION OF LAW
A 100 percent evaluation for schizophrenic reaction, paranoid
type, is warranted for the period between June 1, 1963 and
March 1, 1966. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 3.343(a), 3.344(a), Part 4, Diagnostic Code 9203
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the veteran's claim is "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West
1991); that is, he has presented a claim that is plausible.
He has not alleged that any records of probative value that
may be associated with the claims folder and which have
already not been sought are available. The Board accordingly
finds that the duty to assist him, mandated by 38 U.S.C.A. §
5107(a) (West 1991), has been satisfied.
Service connection was originally granted by the RO for
schizophrenic reaction in a rating decision dated in January
1958. A 100 percent evaluation was assigned at that time,
effective from November 1957. The 100 percent evaluation
remained in effect through June 1, 1963, when it was reduced
in accordance with the RO’s action of March 1963.
Subsequent ratings of February 1965, August 1965, November
1965, and December 1965, reevaluated the veteran’s condition
and confirmed the 70 percent rating. The veteran did not
appeal the confirmed rating decisions.
In a rating decision dated in January 1968, the RO granted a
100 percent rating for the veteran’s service-connected
schizophrenic reaction. The effective date for the award was
August 21, 1967.
In September 1994, the veteran filed a claim for an earlier
effective date for his 100 percent disability rating. The
veteran was of the opinion that the 100 percent evaluation
should have been June 1, 1963, the date of the prior
reduction to 70 percent.
In an October 1994, the RO granted an earlier effective date.
However, the effective date granted was March 1, 1966, not
June 1, 1963. The RO reasoned that March 1, 1966 represented
the earliest date subsequent to the December 1965 rating
decision, in which evidence of the veteran’s mental status
was shown.
As noted above, by a rating action of March 1963, the RO
reduced the 100 percent rating to a 70 percent evaluation.
In this rating action, the RO referred to the findings of an
examination conducted in February 1963. Based on this
evidence the RO determined that a 70 percent evaluation was
appropriate for the veteran’s service-connected
schizophrenia.
However, the RO failed to apply several pertinent regulations
in taking the action described above. Under 38 C.F.R. §
3.343(a), total disability ratings when warranted by the
severity of the condition and not granted purely because of
hospital, surgical or home treatment, or individual
unemployability will not be reduced, in the absence of clear
error, without examination showing material improvement in
physical or mental condition. Examination reports showing
material improvement must be evaluated in conjunction with
all the facts of the record, and consideration must be given
particularly to whether the veteran attained improvement
under the ordinary conditions of life, i.e., while working or
actively seeking work or whether the symptoms had been
brought under control by prolonged rest, or generally, by
following a regimen which precludes work, and, if the latter,
reduction from the total disability ratings will not be
considered pending reexamination after a period of employment
(3 to 6 months).
Rating agencies will handle cases affected by change of
medical findings or diagnosis, so as to produce the greatest
degree of stability of disability evaluations consistent with
the laws and Department of Veterans Affairs regulations
governing disability compensation and pension. It is
essential that the entire record of the examination and the
medical-industrial history be reviewed to ascertain whether
the recent examination is full and complete, including all
special examinations indicated as a result of general
examination and the entire case history....Examinations less
full and complete than those in which payments were
authorized or continued will not be used as a basis of
reduction. Ratings on account of diseases subject to
temporary or episodic improvement, e.g., manic -depressive or
other psychotic reaction,...will not be reduced on any one
examination except in those instances where all the evidence
of record clearly warrants the conclusion that sustained
improvement has been demonstrated....Moreover, though
material improvement in the physical or mental condition is
clearly reflected, the rating agency will consider whether
the evidence makes it reasonably certain that improvement
will be maintained under the ordinary conditions of life. 38
C.F.R. 3.344(a).
In this case, it is clear that the RO improperly reduced the
veteran's 100 percent evaluation on the basis of one
examination. Further, the evidence failed to demonstrate
that there has been sustained improvement, as required by
regulation. A review of the medical evidence does not
demonstrate such sustained improvement in the veteran’s
condition between November 1957, the effective date of the
veteran’s 100 percent rating, and June 1963, when the RO
reduced the evaluation to 70 percent.
On the report of a VA psychiatric examination dated in
January 1960, the veteran showed a definite looseness of
associations, and an inability to concentrate or follow
thoughts in a logical order. He showed a flat effect and his
mood appeared to be depressed. He admitted to auditory
hallucinations. His judgment appeared to be poor and his
insight was also felt to be poor.
On the report of the VA examination dated in March 1962, it
was reported that the veteran appeared to be in acute
distress, agitated, and apprehensive. The veteran reported
hearing voices that call him a bastard and a “s.o.b”. He
admitted to ideas of suicide. His impairment was considered
severe.
On the report of the VA examination dated in February 1963,
it was indicated that the veteran was oriented in all
spheres. Attention and memory were good. He was tense,
somewhat irritable, and showed marked palmar hyperhidrosis.
He denied hallucinations, delusions, ideas of reference,
suicidal or homicidal thoughts. His judgment was fairly
good. The diagnosis was schizophrenic reaction, paranoid
type, chronic, in partial remission. His impairment was
considered severe.
The RO reduced the veteran's evaluation for schizophrenic
reaction, paranoid type on the basis of a single medical
examination which failed to establish sustained or material
improvement in the veteran's condition. The Court of
Veterans Appeals (Court) in Brown v. Brown, 5 Vet. App. 413
(1993) outlined the specific requirements of the Board in
applying 38 C.F.R. § 3.344. The entire record of
examinations and medical history must be reviewed to
ascertain whether the recent examinations were less full and
complete than those on which payments were authorized or
continued will not be used as a basis of reduction; ratings
on account of diseases subject to temporary or episodic
improvement will not ordinarily be reduced on any one
examination; and even if material improvement is shown, it
must appear reasonably certain that improvement will be
maintained under the ordinary conditions of life.
The March 1963 rating action relied solely on the February
1963 VA examination, to the exclusion of the prior VA
examinations and hospital reports. Further, it was not shown
that the veteran exhibited material improvement, that
probably would be maintained under the ordinary conditions of
life. On the report of the January 1960 VA examination, the
veteran should definite looseness of associations, and an
inability to concentrate or follow thoughts in a logical
order. His judgment and insight were poor. Similarly, on
the report of the March 1962 VA examination, the veteran
appeared to be in acute distress, agitated, and apprehensive.
His impairment was considered severe.
Admittedly, the report of the February 1963 VA examination
showed a certain degree of improvement in the symptoms of the
veteran’s condition. Specifically, he was oriented in all
spheres, and his memory and attention were good. However,
his impairment was still considered severe. Thus, after a
review of the evidentiary record, the Board finds that the
evidence failed to show material improvement in the veteran’s
mental condition.
In Brown, the Court concluded that where the Board upholds a
reduction in a rating without observance of applicable law
and regulations (Primarily 38 C.F.R. § 3.344(a)), such a
rating is void ab initio and should be set aside as " not in
accordance with law." Brown, 5 Vet App. at 422. That was
the situation here. Therefore, the RO erred in its March
1963 rating action by reducing the 100 percent evaluation for
schizophrenia to a 70 percent rating. Accordingly, the 100
percent evaluation schizophrenic reaction, paranoid type, is
granted for the period between June 1, 1963 and March 1,
1966.
ORDER
A 100 percent evaluation for the period between June 1, 1963
and March 1. 1966, for schizophrenic reaction, paranoid type
is granted, subject to the controlling regulations applicable
to the payment of monetary benefits.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals
A proceeding instituted before the Board of Veterans’ Appeals
(Board) may be assigned to an individual Member of the Board
or to a panel of not less than three Members of the Board for
a determination. 38 U.S.C.A. § 7102 (West Supp. 1996)
(amending 38 U.S.C.A. § 7102 (West 1991)1996). This
proceeding was assigned to the Board Member whose name and
signature appear above.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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